DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00958

Applicant’s Request

The application for discharge review was received on 20060605.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  The Applicant’s scheduling notice was returned as undeliverable, therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Quality of service.

Equity:  Minor offenses. 

Propriety:  Due Process.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USNR (DEP)	19890627 - 19890710	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890711		Date of Discharge:  19930219

Length of Service (years, months, days):

	Active:    03  07  09
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  26

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (4)			Behavior:  3.6 (4)	OTA:  3.60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal; Sea Service Deployment Ribbon; USCG Spec SVC Operation Ribbon; Southwest Asia Service Medal(3); Kuwait Liberation Medal; Joint Merit Unit Award; Navy Unit Commendations;

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920902:	NJP for violation of UCMJ, Article 134 (2 specs).
	Specification 1: Soliciting another to commit an offense.
	Specification 2: contributing alcohol to a minor.
	Award: Confinement for 3 days on bread and water.  No indication of appeal in the record.

920912:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 134: Soliciting another to commit an offense and contributing alcohol to a minor.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921203:	NJP for violation of UCMJ, Article 90: Willful disobedience of an order from the Commanding Officer.
	Award:  Forfeiture of $500.00 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

921203:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 90: Disobeying order from Commanding Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930112:	NJP for violation of UCMJ, Article 121: Larceny.
	Award:  Forfeiture of $455.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

930116:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense and/or misconduct due to a pattern of misconduct.

930116:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and/or commission of a serious offense.

930119:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930202:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930219 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Equity: Quality of Service:  The Applicant is claiming he was a Gulf war veteran and most of his evaluations were good and at least deserving of a chance to be heard in a hearing.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by 2 retention warnings and 3 nonjudicial punishment proceedings for violations of Articles 90 (Willfully disobeying a superior commissioned officer), 121 (Larceny) and 134 ( Soliciting another to commit an offense) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Equity: Minor offenses:  The Applicant claims the charges brought against him were minor offenses.  

The Applicant was charged with violations of Articles 90 (Willfully disobeying a superior commissioned officer), 121 (Larceny) and 134 (Soliciting another to commit an offense) of the UCMJ.  Each of these violations is considered serious offenses which warrant a punitive discharge if tried and found guilty of in a special or general courts-martial hearing.  Relief is denied.

Propriety:  Due Process:  The Applicant claims he was not given the chance to properly defend himself from accusations which lead to him being discharged for misconduct.

On 19930119 the Applicant was advised of rights and having elected not to consult with counsel, elected to waive all rights concerning his discharge process.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not given the chance to properly defend himself from the charges which lead to him being discharged for misconduct.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 90 (Willfully disobeying a superior commissioned officer), 121 (Larceny) and 134 ( Soliciting another to commit an offense). 

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023